Why Was the Story Different in 2017?Harvey, Louis, & the Open Secret

have been thinking through this post for a while. Obviously, the national media attention on the Sexual Misconduct of public figures has been building and growing and dominated many news cycles in the last half of 2017.

But the question is why now? What changed that meant the #metoo movement could gain traction?

As you read this I think you will get a new point of view on the following:

Human Mating Rituals are Super Weird and not logical

The legal system’s presumption of innocence, and standard of “a shadow of a doubt” means that certain sexual misconduct will never be convicted.

There is a public sphere, and its rules are different

Power, Hierarchy, and Authority are things you create to control and limit yourself

It got me thinking about what it means to have an “open secret” and why do we have them in the first place.

First Point. The US Legal System is a terrible source of justice for events that happen between two people in a bedroom.

I have written about this before if you follow me on social media. The US legal system, with its presumption of innocence, is a terrible place for a victim of a sex crime. There are many layers and reasons that make it ill-suited. Two that when combined are especially bad are these features.

All ties in legal cases default to “not guilty”, so if there is a shadow of a doubt that this person 100% did it, they are free to go. It is a high bar. You need a unanimous jury. If someone commits a sex crime legally, they only need to plant a shadow of a doubt that “you know maybe I didn’t do that”.

3rd Party Eyewitness testimony is really valuable. If you have three eyewitnesses for a bank robbery, that is pretty common. To have any eyewitnesses of an actual sexual assault is rare.

So the history of sex crimes in the US legal system is not good, and for the person assaulted, the idea that they have to prove their version of events, and all that entails makes even going to trial a very unpleasant prospect. (long explination)

Add to that before 2017, when you did not bring charges, you could not discuss them without running a risk of lawsuits for slander or libel. Which again makes sense, if you call someone a criminal and you have not secured a conviction then you are probably going to lose there. More on that in a little bit.

But the end result is magazines and newspapers for sure would not be able to print most of the details of those allegations for that reason. If they did they had to be very careful to describe the “alleged crime” and throw in things like “if true…” everywhere to make sure that they were not assuming the guilt of a crime or portraying the “accused” in a way that would be legally problematic.

So you end up with a legal system that demands proof from independent parties and a standard of guilt that is very difficult to secure without hard physical and eyewitness testimony. Followed by a libel and slander defense for those found innocent that effectively keep that information gagged in the public media discourse.

Second, Even if the Legal system was effective here, it does not think like normal people.

What do I mean by this? There are several layers of society.

Government. The laws and courts and bureaucracy that make up the State. Ideally remote, fair, efficient, logical. It administers the State and ensures tranquility and peace.

Civil Society. This is all the informal and voluntary associations. PTA, Soccer clubs, Speaker Building clubs, Sierra Club, Jon Bon Jovi Fan clubs, Political Parties, Churches, Companies, Trade Unions, Museums, Alumni Associations, Boy Scouts and on and on. These groups and memberships make up the largest part of Society and how it feels. It is how people effect change and each society has its own culture and norms.

Private Society. This would be your home and family. In US and western tradition, this is your own business and you can typically do whatever you want.

That was a quick aside, but the big point for this discussion is that the rules for civil society are NOT the same as the legal one. A few quick examples.

if a friend you work with is at a party with you, they get a little drunk and break something at your house. Could happen. And now you are trying to determine what should happen to that person the next morning.

In civil society point of view, they are a friend, you may choose to give them some grace based on the fact that they were not themselves due to alcohol, and you may offer to forgive them and forget the damages to the item.

Now the legal point of view is very different. In a court of law, any reduction of functionality due to impairment does NOT alter the standard your friend is held to. The question legally would be, what would a reasonably prudent person have done, and if your friend did something different, then they take over the responsibility for the actions. And if they are responsible, then you calculate out damages that they need to cover.

So how does that play out here when considering a sexual crime. Crime is by definition in the legal sphere. And as covered above very difficult to prove.

Crimes are

Rape

Domestic Violence (which used to fall into the Private Society area)

Sexual Assault

Imprisonment

Sexual Battery

But what does live in the civil sphere is things other than Crimes per se. Misconduct, Inappropriate behavior and such that are NOT legally defined. And are not legally enforced. They are defined by the community, and they are enforced through removal from the voluntary associations that the community participates in.

Too long hugs,

uncomfortable innuendo,

inappropriate jokes,

stares that are “not right”,

advances that should not have been made,

misreading signs

etc

are ALL in the Civil Society scope, and not controlled by the Legal or Government Sphere. And the punishment for violating standards like that are things like, getting kicked out of the Directors Guild, not being invited to parties, and becoming the subject or Rumors and Open Secrets.

Civil society regulates itself.

Third Point, the media stopped reporting on Criminal accusations, a started reporting on Inappropriate Behavior.

What you will notice about most of the stories in 2017 if you go back and look is that they are for the most part NOT about things on the Criminal List. They are on the Civil List. And the stories are not about their crimes but their behavior and how inappropriate it was.

Legally can two consenting adults have sex? yes. What if they work together? Sure. What if one is an intern? well… What if one is 30 years older? uh…

So you get to these level of questions, you are now trying to figure out

“what is normal and acceptable?”
VS
“what is waaay too creepy and gross?”

And all those answers start getting very specific to norms that are in place for specific parts of society and specifically “what do we as a culture accept in 2018?”

So why do we need that conversation and why do some people have some much trouble with it?

Human mating rituals are super weird, and there are few clear-cut rules. The ones that are clear have been moved into the criminal sphere.

People have to save face, people say things that are different than they mean. They do the opposite of what they say. They fake cancer. They catfish people. Let’s not even get into the fetishes and stuff that I cannot comprehend. They have suicide pacts. They commit crimes together. Desperate guys trying to figure out the mating rituals have been so confused they think being a pickup artist is the answer. People are weird.

So that is why the norms we are talking about

1. vary so much, and
2. confuse the crap out of some people, even when it makes total sense to us.

So compare how allegations against Bill Cosby were reported, compared to Matt Lauer and Vince McMahon.

Matt Lauer once gave a colleague a sex toy as a present. It included an explicit note about how he wanted to use it on her, which left her mortified.

and then will even mention it is largely or completely consensual and legal.

There were a lot of consensual relationships, but that’s still a problem because of the power he held

But notice there is not much reference to anything illegal. This also was successful reporting in that is took what was local knowledge of non-acceptable behavior and made it more widely known. It made the open secret public knowledge.

Vince McMahon

Final example lets us look back at a Vince McMahon incident from 2006 and how it was reported.

Note the following bits:

the story was reported

The allegation against McMahon was covered at the time by local media and in an Associated Press report

2. there was probable cause but lack of a 3rd party witness

The report concludes: “There is probable cause to believe that Vincent McMahon did actually and intentionally touch against the will of ____, contrary to Florida Statute 784.03 (1).”
———
A misdemeanor that is not done in the presence of a law enforcement officer in Florida generally is not a prosecutable case unless there is a independent witnesses and or physical evidence as in photos — that kind of thing

3. The “beyond a reasonable doubt” is a very high standard that would prevent a conviction in this case.

“The filing standard for the state is above and beyond a reasonable doubt,” Mike Edmondson, a spokesperson for the Palm Beach County State Attorney’s Office said. “Prosecutors have to file at a higher standard, which is proof above a reasonable doubt. It’s a much different standard than probable cause.”

Conclusion

As you can see from the last story, the way that the legal system is set up prevents justice in cases where you only have two people involved and no witnesses. That is by design and not likely to change at any point in the foreseeable future.

Also, you can see from the way that the #metoo movement and the stories around it have evolved. There is a layer of civil society, that operates on very different rules from the legal system. It does deal with reputation, and figures out what is acceptable and not in a way that is far more nuanced than the legal system can.

Bottom line, if you talk about crimes that cannot be proven, and that helps the accused. And for years that is how reporting on sexual misbehavior was done.

BUT If instead, you talk about improper behavior, inappropriate behavior then you can affect change.

PostScript

Also, Eagle-eyed readers may notice I mentioned two bullets at the top that I have not gotten to due to the length of this article. Look out for them in a future article.

Power, Hierarchy, and Authority are things you create to control and limit yourself